Gay Justice

While Judge Sonia Sotomayor's nomination is a step forward for diversity, an openly gay Supreme Court member remains a long shot -- unless President Obama bucks the trend.

BY Chris Bull

July 06 2009 12:00 AM ET

In american politics, few events signal the political arrival of a minority group more powerfully than a Supreme Court nomination. When President Obama tapped Sonia Sotomayor -- making her the first Latina to be nominated for service on the high court -- it was an important nod to the growing political clout of Hispanic-Americans.

Though there is no evidence Obama gave more than passing consideration to an openly gay nominee, for the first time the notion didn't seem to be out of the question: Both The Washington Post and The Wall Street Journal put prominent Stanford law professor Kathleen Sullivan on Obama's short list. And T he New Republic speculated about Sullivan's Stanford colleague, Pam Karlan, deeming a gay Supreme Court nominee politically "plausible." (Sullivan and Karlan declined interview requests for this story.)

"The first African-American, Jew, woman -- each [high court nomination] took place after the group had achieved political power," says Jeffrey Toobin, CNN legal analyst and author of The Nine: Inside the Secret World of the Supreme Court (Anchor). "It's now gay people's turn to have that kind of validation, but the first one is always difficult and controversial, and can take some time from the assumption of that power."

Indeed, gay and lesbian Americans may have to wait a while for such a breakthrough. Gays not only lack the electoral weight of other minority groups, but also are nearly nonexistent in the federal judiciary. Every current member of the U.S. Supreme Court was chosen from a federal appellate court position (Sotomayor has served on the second circuit court of appeals since 1998).

In March, Obama named openly gay Emily Hewitt as chief judge of the federal court of claims, a position without the lifetime tenure of other federal judgeships. He also nominated another openly gay judge, Maria Demeo, to serve in Washington, D.C., superior court, a lower trial court. But of the nearly 900 federal district and appellate court judges, only one is openly gay: Deborah Batts, a New York district court judge appointed by President Clinton in 1994. "While people of color and women continue to be underrepresented at all levels of the federal judiciary, 'out' LGBT judges are nearly invisible among their ranks," wrote Kevin Cathcart, Lambda Legal executive director, in a letter to the White House.